What Does AG Really Stand For?

Rob McKenna talks scams, Sparks and River Park Square.

Newspapers rarely relish calls from lawyers. But when Washington state’s second-term attorney general called to talk last week, we were happy to oblige. Rob McKenna, the state’s top barrister and the presumptive Republican candidate for governor in 2012, stopped by The Inlander on Friday to talk about consumer advocacy and the world of online justice.

Maybe you can start by explaining to readers what exactly the attorney general does.

We really have two broad functions. First, we are the consumer protection agency for the people of the state. We have been since the Consumer Protection Act was enacted in the late 1960s. And related to that function we also are the anti-trust enforcement agency. We also do a certain amount of criminal litigation, assisting counties that need our help. Then there’s our role as legal advisors to the state, so under the constitution we provide all the legal services to state government. So I have about 230 state agencies, boards and commissions as clients. And about 540 lawyers altogether. Most of whom — the ones who are not consumer protection, criminal or Medicaid fraud — are providing legal services to all those state agencies. That means we’re in court. We’ve got 20,000 cases open at any one time. About a third of those cases involve abuse and neglect in children. That’s the largest single category of work that we do. I have about 540 lawyers and about 120 to 130 of them handle those children’s welfare cases.

So that’s a big part of what we do. In other states, that work is done at the county level. But for many, many years, that work’s been done in our office including, of course, here in Spokane, where we handle those cases for Spokane County. Also in Stevens County. So it’s a big part of what we do.

And then of course you can imagine with all the other state agencies, every other kind of work we do: environmental, education. We defend the state against tort claims. You name it.

You’ve made news a number of times over the last few years for consumer advocacy, from Sparks alcoholic energy drinks to MyLoveCrush, which was sending Web users fake come-ons.

Alcohol energy drinks, which we succeeded in persuading Miller to drop. And then MyLoveCrush is an example of the work that we do in the Internet sphere. When I came to the Attorney General’s office, I came to an office with one of the best consumer protection divisions in the country. It was already very strong. But I wanted to expand our work online, in online consumer protection enforcement. We have one attorney who did some of that work part-time. So I persuaded the legislature to expand our funding. It’s one of the few areas where we actually get general fund money. And with that additional funding, we hired more attorneys, support staff and — critically — we hired a computer forensics expert, who built a computer lab. And that same year — 2005 — we wrote the state’s anti-spyware statute. We helped write the anti-phishing statute. Then we went to work.

By January of 06, we brought our first anti-spyware case, and we’ve been bringing cases ever since. We have now brought more cases against malware purveyors than any state in the country. We’re second only to the federal government in that work. And MyLoveCrush is an example of that kind of case, where you basically had unfair and deceptive advertising online.

And we’re also active legislatively, of course. We’ve supported, written and secured the passage of a number of bills to try to improve consumer protection in that area.

In that consumer advocacy field, what else have you been working on?

In addition to thinking about consumer protection online, we’ve also this year been very active in promoting a couple of improvements to state law with regard to tobacco on the one hand and online child pornography on the other.

I’m the co-chairman of the National Association of AGs’ tobacco committee. This is an on-going role that we have at the national association, following the adoption of the Master Settlement agreement with the tobacco companies in 1998. And there’s this constant battle to enforce because the tobacco companies are constantly pushing the envelope trying to find creative new ways to market to young people. So we’re constantly enforcing against them. And one of the ways we try to continue to make progress with tobacco is to deal with the availability of cheap tobacco online. And the reason this is important is, first of all, public health. In Washington state alone, we’ve cut youth smoking rates by 50 percent. And we’ve also cut adult smoking by a large percent. I forget the exact number. We’re at the lowest level of smoking in our state since the 1950s.

One of the key reasons – especially for the reduction in teenage smoking rates — is that it’s more expensive to smoke now. Cheap tobacco online undercuts that strategy. And sure enough, as we’ve seen the inflation-adjusted price of smoking start to fall, smoking rates rose. And it’s very noticeable with teens. So, we know the Internet is a primary source of cheap tobacco, and we’re asking the state to prohibit online tobacco sales. I’d have to double-check, but I believe the bill was passed. It’s done, or it’s nearly all the way through the process. It’s been doing well.

Child predators are another matter. About two years ago, a group of us — that is to say, myself and other AGs — approached News Corp (the owner of MySpace.com) and we approached Facebook, because we were concerned with the increasing number of reports of child luring online. Among other steps that MySpace took, they ran the IP addresses — not just the email addresses, but the IP addresses — of all their page owners against state databases of registered sex offenders and — presto — the first time they ran it, they found 27,000 registered sex offenders with MySpace pages — under their own names! We subsequently negotiated a large number of changes to MySpace and Facebook procedures and protocols. For example, it used to be that the default setting for someone who is 16 or 17 on MySpace was “public.” In other words, unless you changed it to private, anyone could look at your page. It was a default private for the younger kids, but not for the 16- and 17-year-old. They’ve now changed that so it’s default to private if you’re under 18. That’s one example.

Now, child pornography comes into this equation for two reasons. Number One, there’s been an explosion of child pornography in the world because of the Internet. It’s just that simple. It’s so much easier to traffic in these images that it’s created an expanded market, and many more children are being raped to create these images worldwide.

Unfortunately, when we went to the Legislature in 2006 to make it a more serious crime to possess child pornography (we raised it from the lowest level of felony to the second highest level of felony) we still keyed on the traditional way to approach child porn, which is to go after possession. Since then, it’s become evident that more and more consumers of child porn never actually download it, or print it out. They cache the Website addresses that they use and go out and look at it online. So we want to make accessing and viewing child porn a felony, with appropriate protections. We would have to prove intentional viewing. We would have to prove a pattern of use. This is not designed to trip somebody up who somehow stumbles across it, although I have to say, people don’t typically stumble across child porn. It’s not like adult porn, right? It’s hidden because it’s illegal everywhere in the world. But nevertheless, we understand that people want us to be sure to have to prove that it wasn’t accidental, which we agree to.

So that bill got hung up in the Legislature this year. We will bring it back next year. The Chairman of the House Public Safety has promised that he’ll help secure its passage. And we’ll keep pushing for it, because child porn in and of itself is a tremendous evil.

Secondly, federal research, based on interviews with convicted child porn traffickers, indicates that 80 percent of them voluntarily admit to physically abusing children, even though most of them have never been convicted of physically abusing a child. So there’s a strong correlation between viewing child porn and physically abusing kids. So that’s why we’re working on that.

There was a Supreme Court ruling just today that said people could be prosecuted for child pornography if they possessed even just one image.

Yeah, it’s called a unit of prosecution rule. So you have to decide whether you can be charged with multiple offenses if you have multiple images. They said under the current statute, given the Legislative intent, if someone is found with one image or a thousand images, it’s only one count.

By analogy we ran into the same problem with identity theft. The Supreme Court ruled in 2006 in a case I’ll bet they cited in today’s ruling that if you steal someone’s identity and you use it one time or a hundred times, it’s still only one count of identity theft. So, in 2008, we persuaded the Legislature to change the unit of prosecution, so that each time a stolen identity is used, it’s a separate count of identity theft. This gives us tremendously enhanced leverage over identity thieves.

Apparently we’re going to have to seek the same kind of legislative fix for this issue, as well. We can fix it legislatively. We’ve already been in touch with the prosecutors and police chiefs and sheriffs. There’s a lot of interest in changing the statute to solve the problem identified by the Supreme Court. I mean, it seems to me that somebody caught with one image ought to be treated differently than someone caught with a thousand images. It just seems to be common sense.

Maybe we’re still sore over the Sparks issue because it’s so damn good, but that was a case where you went after one specific company that marketed alcoholic energy drinks, rather than trying to block minors’ access to all cigarettes.

That’s alright [laughs]. Our beef with Miller was with how they were marketing it. We didn’t ever try to make it illegal to combine an energy drink with alcohol. As long as it’s controlled the way alcoholic beverages are, which Sparks was. The problem was with the way Miller was marketing it. We found that they tended to market it in a way that suggested that the energy boost that you would get somehow made you less drunk. It was troubling. So they could have chosen to not advertise in that way, keep it on the market, but instead they chose to take it off the market.

Frankly, I think that they recognized the potential civil liability. Not from us, but from private parties. And because there was some research that indicated that young people — particularly under-aged drinkers — were not getting the message. I mean, if you think about what the Sparks can looked like, it looked an awful lot more like an energy drink than a beer or a malt beverage. So that was our concern.

Speaking of marketing, is there any discussion among state AGs about pharmaceutical marketing?

Yeah, absolutely, in terms of the amount of money spent on advertising, for example. And the amount of marketing, right? We all notice it. I don’t know what the TV stations would do without pharmaceutical marketing. It’s astounding. ‘Consult your doctor,’ you know?

Has it risen to the level where it’s now a public interest?

It is. It’s a matter of public concern in the public policy arena, as opposed to the law enforcement arena. So I don’t really see a base for the attorneys general to be involved, in terms of threatening to sue the pharmaceutical companies. In fact, I don’t think that would be appropriate. There’s no cause of action. Congress, on the other hand, might want to look at that issue, and I’m sure they’re discussing that very issue.

But it’s a controversial issue, because the pharmaceutical companies point out that there’s a lot of evidence that the advances in medicines have reduced the overall health care costs, and that the vanity drugs that are designed for your bald spot or your soft spot or your other spot generate a lot of revenue that’s plowed back into research that produces drugs for cancer. So, I think even I the policy arena there’s room for debate, but I think that’s where it needs to happen, is the policy arena.

When I joined the National Association of AGs, I attended my first meeting in November of 04. I wasn’t even sworn into office yet, but traditionally the elects come down. There was a lot of talk around the table about those issues, but no one was able to articulate a cause of action, and I don’t believe in filing a lawsuit in search of a cause of action. I think you have to have a clearly defined form that you have to have a basis for having a suit on, and we just didn’t see that with pharma.

There’s the joke that AG stands for aspiring governor, and there’s certainly been talk of you as the next Republican candidate for either governor or U.S. Senator.

Yeah. [Laughs] Well, at this point all I’m focused on is 2010 and the legislative races. I’m doing a lot of candidate recruiting to help create greater balance in the state Legislature, between the two parties. I don’t plan to run for the Senate, frankly. I’m very happy to be done campaigning, and I’m enjoying just doing my job, so I work on the candidate recruitment in the off-hours, and I just really enjoy being AG during the work day. Beyond that, we’ll see. I take it one cycle at a time. And I really like being AG. So it could go either way. Five of the last six AGs ran and served three terms, coincidentally. In politics, you gotta be aware of your opportunities, but I think it’s wise to take it one election at a time.

But you wouldn’t turn it down?

I think if the opportunity looks promising, and it gives me another opportunity to serve, of course I’d take a hard look at it. There’s no mystery about that. But I’m not interested in being a candidate for governor for the next four years. I’m more interested in doing my job.

Have you been involved in the payday lending legislation?

No, I haven’t. For one thing, we don’t get that many complaints about payday lenders. That’s because it’s probably the most heavily regulated segment of the financial sector that there is. Have you ever been in a payday lending store? It’s amazing. Compared to a bank or an S&L or a credit union, there’s disclaimers and disclosures all in statutorily prescribed 24-point font, it’s all over the place… So, I’m spending my energies where I think that the problems are.

It’s our job to go after unfair and deceptive practices. There are policy arguments about payday lending, but I’ll simply observe that they fill a clear need in the market. And there are paternalistic arguments that say, ‘Don’t let people take out a payday loan,’ but those loans typically go underground if they’re not overboard and regulated. And, you know, the banks get to charge overdraft fees. Essentially, they’re making payday loans when they charge 25 to 35 to 45 bucks, so I choose to put my time where I’m getting a lot of complaints, and that tends to be in the areas we’ve talked about. Plus a lot more.

We’ve seen a huge upswing in consumer protection complaints in the last several months around employment scams aimed at the unemployed, around mortgage foreclosure scams. It’s just been astounding, because the Internet and all these other technology tools have made it so much easier for scammers to try to reach targets. You know, just about everybody [who] puts something on craigslist today — a car, an apartment to rent — is contacted by a scammer now. ‘I’m gonna send you your full price. Oh, I’m gonna include some extra money.’ Or they’ll send you a check for an extra amount and they’ll call you and say, ‘Oh Gosh, I’m sorry I sent too much money. Tell you what, would you please wire transfer the difference to…” You know? It’s just phenomenal. And you think about the unit cost per potential victim. It’s extremely low. We have seen an explosion of fake check scams and scams not only over the Internet, but by phone, based on that technology.

People say ‘This guy’s 46, but he looks like he’s about 12.’ What’s your secret?

Good genes. Choose your parents wisely.

Could you elaborate on your office’s decision in the Riverpark Square case, in which a woman died after driving her car through a barrier in the garage? Should this issue be dead at this point, legally?

We’re the third agency to review the materials in the case for purposes of determining whether criminal charges might be warranted. And we’re the third agency to conclude criminal charges aren’t warranted. This is a case where our criminal prosecutors concluded the appropriate means for redress were in the civil law arena, which is exactly what happened, of course — the $1.6 million settlement. That’s where you settle this kind of case.

It’s a fairly highly standard to prove the level of negligence for recklessness that triggers manslaughter charges. And based on the review of the four large boxes of documents that were sent over to our office, we concluded as the U.S. attorney did and the county prosecutor did that you can’t make that case. As far as criminal charges are concerned… I mean, it’s up to the county prosecutor, but he said that’s probably it on that issue.